Rep. Zoe Lofgren Quizzes US Register Of Copyrights Over Close Connection To Industry

from the how-does-she-keep-her-job? dept

We've expressed significant concerns about the Register of Copyrights, Maria Pallante, and her statements that copyright is for the author first. This isn't the first time we've had concerns about Pallante, who also strongly supported SOPA and testified at the House Judiciary Committee hearing in favor of SOPA. Usually, the heads of government agencies don't take specific positions on bills, especially when that position appears to favor one particular set of stakeholders over others. It certainly raises significant questions over the impartiality of the office.

Thankfully, some in Congress are noticing. Rep. Zoe Lofgren recently quizzed Pallante about these statements and about her testimony, during a House Oversight Committee meeting concerning the Library of Congress (which is in charge of the Copyright Office). Lofgren also dropped a bit of a bombshell, noting that the day before Pallante testified in favor of SOPA she was hanging out in Hollywood with top lawyers from the major MPAA studios. Pallante played it off as an attempt to talk more directly to stakeholders rather than lobbyists -- as if the top lawyers at the studios don't already have plenty of access with the Copyright Office and other government officials.

Lofgren also asked about Pallante's comments, which we mentioned above, about copyright being for the artist first. Pallante noted that her oath of office requires her to uphold the Constitution, and then cites the Supreme Court's ruling in Eldred and Golan as agreeing with her interpretation. Just listening to it, I started to get annoyed, and, thankfully, so did Lofgren, who immediately pointed out that Pallante's comments were "a real misstatement of the Eldred case," which was only about Congress' authority in determining the structure of copyright law."

Later, Lofgren had a chance to offer a second question. There, she discussed a meeting Pallante had with two more big SOPA supporters: the Authors Guild and the Association of American Publishers in New York in December last year. Similar to the meetings with studios, Lofgren asked for details of such a meeting. She then asked about Pallante's questionable comments to the AAP which we reported on at the same time as her comments about her interpretation of copyright law. Lofgren asked if Pallante thinks it's part of her job to preserve "a particular form of copyright works... or industry business model" in response to Pallante's claims that she can't imagine a world without books. Pallante's response was a bit condescending, saying she wasn't talking about "a particular format of books -- I was talking about books."

It's good to see Congress recognizing that the Register of Copyrights seems impossibly biased in favor of specific industries, rather than actually paying attention to the purpose of copyright law: to benefit the public.

Re: Re: Would this be another good time to repeat . . .

Not necessarily. Allowing some people to become wealthy is a certain incentive to innovate and attempt in the business world.

I'm not looking to start a "job creator" argument here, I'm only suggesting that allowing the earning, and thus, the accumulation, of great wealth may be an incentive for innovation and other risk-taking. If there was some "average" or "low" earning ceiling, why would I (as a selfish individual) ever risk that maximum when there is no greater reward?

Forcing some artificially low limit for wealth re-distribution seems like it would drastically alter the risk vs. reward landscape, so I'm not sure that solution would directly follow from the "greatest benefit" argument.

Why haven't these clowns been asked to testify before congress yet?

The weird thing is that no one really knows who is funding this. I'd like some names. But I think perhaps they are Jewish. Not that there's anything wrong with that, it's just that they dont testify or haven't bern asked to testify before congress themselves.

As a result of all this WeHo jack-off circle jerk, artists and actors aren't getting paid as much ad they did for the same type of work performed even 5-10 years ago. But it seems that the folks in WeHo are getting paid.

instead of just 'recognizing that the Register of Copyrights seems impossibly biased in favor of specific industries' they need to get things moving to stop it from happening, replacing as many people as necessary in official 'supposed unbiased posts' to achieve a level playing field. Pallante is obviously biased in favor of the entertainment industries. if she wasn't, she wouldn't say anything that she then needed to explain. shame no one is able to track how many other meetings she has had with entertainment industries officials or how she has benefited from those meetings

Re: Re: Would this be another good time to repeat . . .

"This article sparked a thought: What if all laws were judged on the basis of "how many people does this benefit versus how many it inconveniences?" before they were passed?"

Well, if you are using Masnick style inspection, you would look only in a small area, in a short term, and if you don't happen to find quite enough benefit, you will toss it out.

See, the problem is benefit (like "progress") isn't something you can measure easily in a short period of time. Asking "what is the benefit" and expecting a show of hands or something isn't going to get you the right answer, because the benefits may only be apparent (or even ingrained) 10 years or 20 years later.

So yeah, short term, it might "strip the wealthy", but it might also bankrupt you later on, an unintended consequence of your short term greed.

Re: Re: Re: Would this be another good time to repeat . . .

I think there's a balance to be had. The problem with great accumulation of wealth is, simply, that wealth equals power, and too much power (wealth) in one person's hands has a clearly adverse effect of government and society. I think there is a legitimate societal interest in limiting that damage.

On the other hand, what you say is also true.

This is, basically, why I'm in favor of very high income taxes for very high incomes. In the 90% range at the top end, because historically this seems to have worked pretty well. Note that I don't mean that if you make more than x, then you pay 90% of your entire income, but rather you pay 90% of your income that exceeds x.

Above a certain income level, people who strive for more aren't doing it for the money. They're doing it for the status and power. A high tax at that level doesn't change those motivations. What it does change is that it gets those people to take less actual income, and the earnings they don't take as income tends to get reinvested in the business instead. In effect, it turns legitimate reinvestment into a kind of tax dodge.

When that level of income is taxed low, it causes the money to stop flowing so readily. That money is not reinvested in a real way, and the personal income leads to a dangerous accumulation of power.

Re:

... they need to get things moving to stop it from happening ...

What makes you think that anyone in Congress actually sees that as a desirable result? Lofgren and friends likely put on a dog and pony show for the voters with no desire or intent to see any results from it.

Why pass up fat campaign contributions and extremely well paying future consulting jobs by doing something when you can just talk sternly and continue with business as usual? It's not like they have to worry about whoever runs against them not taking *AA money.

The only real choice is would we prefer a red or blue condom for when they fuck us.

There isn't very much innovation in Hollywood anyway. Everything that happens in Hollywood happens for strange reasons, isn't really ready, fails to meet customer expectations. A perfect example of this is MySpace. MySpace was built in Los Angeles, but didn't really meet the needs of the many. It was subsequently replaced with a different platform by people much smarter who redesigned the platform into something easier and with additional functionality.

Now that music and movie production is leas centralized, in partly thanks to technology developed by Apple in Northern California, production does not have to occur in Hollywood. It can occur anywhere.

So it really doesn't make sense for a small team of lawyers and/or attorneys who continue to believe in the studio-system mentality to continue to pursue centralization of ideas and concepts specific to an old business model.

And she has yet to meet any of the artists that actually create the stuff she loves. It's just middleman after middleman after middleman, all wanting a piece of the pie. Perhaps if she met the artists, she'd change her mind about all those middlemen.

Re: Re: Re: Would this be another good time to repeat . . .

In an ideal world, say the one postulated in "The Wealth of Nations", income redistribution would happen as a consequence of vigorous competition in the marketplace and not by "stripping the wealthy" by legislated means.

You're right about short term thinking causes more problems that it solves. A great many more. I wouldn't accuse Masnick of that though I would say that politicians are very guilty of that. If your chances of re-election are dependent on a short term "fix" that's popular a great many politicians will take that over a longer term unpopular one that will actually result in "progress".

There's nothing wrong with a cost/benefit analysis being done on legislation that requires spending or sets a budget keeping in mind that the state has to find the money to pay for this somewhere. Stripping the wealthy has never worked but then again creating a permanent underclass hasn't either. So there must be a balance struck between wealth and poverty in tax structures in order to pay for what the state wants to spend on.

Then comes the problem that what constitutes "progress" to some is taken as the polar opposite to others.

Let me bring this one up with respect to "Intellectual property", a phrase I'm coming to loath. What is commonly misquoted from the Bible as "money is the root of all evil" is actually "the LOVE of money is the root of all evil".

In the context of this post I'd suggest that the problem with the *AAs if of the world and the companies that make them up the so-called "content industry" is guilty of the latter. And swimming in money has hardly made them less risk-averse, in fact it's made them MORE risk-averse. Which explains their actions which, if it was a flesh and blood human being, we'd call miserly.

if Pallante and those in positions similar to her were to organise meetings or agree to meet representatives from the side that opposes copyright in the forms it is in atm, instead of just meeting those from the industries side, the bias wouldn't be so obvious. perhaps also, getting the complete picture by listening intently to both sides, not just getting the views of those same industries and ramping up protections, lengthening copyright terms, increasing punishments and making the punishments easier to instill by making people 'guilty by accusation' on the industries say so, could prove extremely beneficial to everyone! but, yet again, i suppose i am hoping for Utopia!

Funny...

Yes, I am sure Pallante is really worried about books. Books existed before our moronic copyright system was instituted, and they will ALWAYS exist in multiple ways and formats. You DO NOT need copyright to have books.

Re: Re: Re: Would this be another good time to repeat . . .

I wouldn't implement an upper income ceiling, partly because of your argument that potential income is a great incentive for innovation, partly because rich and powerful people have always found ways around such arbitrary thresholds.

Instead i would go for a minimum income, which should at least be sufficient to provide for basic food, shelter and emergency medical attention for everybody. Ideally (if the society was powerful enough to support it, which most developed societies still are) i would throw in education, general medical care and public transportation.

To counter the nobody-would-work-anymore-argument: people (in the developed world) don't work for basic survival, people work for satellite tv, cars, fancy clothing, traveling and status, that's not going to change.

The value of such an arrangement would be tremendous:

- job loss wouldn't mean people are getting tossed onto the streets, this alone would make economically desirable layoffs a non-issue and remove one major incentive for the state to grant subsidies. this would also remove the need for immediate-layoff-prevention legislation (which in turn would remove one important hurdle to hire in the first place).
- the labour market could arrive at optimal prices, today's labour market is skewed in that it puts lesser qualified people in a position of "take the job at any wage or die", which leads to a larger income gap (or, more polemically, an underclass of cheap basically forced workers to allow for the fancy lifestyle of the upperclass). note that this would also remove much of the need for bureaucratic legislation like minimum wages, special rights for labour unions, work hours and so forth. potential employees with the true power to say "no" in response to a bad job offer would just by market forces lead to certain minimum standards and fair wages.
- social security would be granted automatically, to everybody, without any test, this would remove the large social security bureaucracy almost entirely, along with privacy-threatening detection of benefit cheaters and the social stigma.
- entrepreneurs wouldn't have to worry about "losing everything", since their basic needs are covered. also, by removing much of the worker-protecting legislation, it would be easier to start a business.

the downsides are basically only to be found in either the upperclass (of which i am, at least income-wise and choosing-my-working-conditions-wise, part of), which would have to pay more for less-qualified labour (the income gain for the underclass would be greater than the price rise, because the latter is spread among both upper- and underclass), and people working in non-productive industries (like legislation, social bureaucracy, lawyers, labour union employees), who would have to find another job.

now, how do we pay for this? well... the non-productive-industries-workers i mentioned wouldn't have to be payed anymore, just the basic income, which would only be a fraction of their current pay (i think we might be able to pay 4 or 5 basic incomes per non-productive-industry-worker layed off). a lot of people receive transfer income right now (unemployed, disabled people, children, the elderly), so their basic income wouldn't cost substantially more than it does today. who is left? all the people in the productive industries and upperclass members, who could all pay for their own basic income with slightly rising taxes (which could thus be almost income-neutral).

now, obviously i am a dreamer.. the left will attack me because i want to remove the need for labour unions an non-productive-industry labour, telling me i want to lay off people and just subsidize poverty. the right will attack me because the upperclass gets to have a smaller slice of the ever-growing pie, telling me i want to subsidize lazy deadbeats.

in fact i just want to use proven tools (market forces) to take care of a huge bureaucratic burden (social security), leading to a desirable outcome for society (fairer income spread). i consider myself neither left nor right, btw.

Re: Re: Re: Re: Would this be another good time to repeat . . .

"You're right about short term thinking causes more problems that it solves. A great many more. I wouldn't accuse Masnick of that though I would say that politicians are very guilty of that. If your chances of re-election are dependent on a short term "fix" that's popular a great many politicians will take that over a longer term unpopular one that will actually result in "progress"."

Politicians are always on that level, because they are working hard to get re-elected.

Mike, well, I think that he spends a lot of time on looking at individual cases and trying to imply that entire systems are broken on the basis of the example. His desire to neuter patents and copyright both appears to be a really short term gain thing, with absolutely no apparent consideration for the future implications. He's on what can happen "RIGHT NOW!".

For me, it's on par with the old Republican Voodoo Economics. You give a bunch of money to rich guys, and then "a miracle happens" and everyone gets rich. It doesn't work, proven over and over again. The rich just got richer. What Mike proposes is the reverse, you give everything to the poor, and then magically expect them and those who wasted their money investing in something to get together and rush forward for no apparent reason. It's Voodoo IP, the base assumption is that there will be "MORE!", but there is little indication that, beyond perhaps an initial rush of innovation by duplication, that there would be any long term benefit.

That's focusing on the short term, that's getting too close to individual cases, and ending up with an incredibly myopic view of the subject. It is in the end what Techdirt hinges on entirely.

Even the pirate party people are starting to realize that you have to have a fuller program, not just "free the IP" as a mantra to really get somewhere. Mike might actually flesh out a real (and credible) vision of the future, without any magic tricks or Voodoo IP, and it might be understandable. His "Sky is Rising" stuff is classic voodoo, it doesn't really paint the future well.

Re: Why haven't these clowns been asked to testify before congress yet?

Re:

As cited in the article, 'Ms. Pallante makes an effort to speak with the stakeholders', which in her mind equates to content industry reps. Who else are stakeholders? Pirates? Consumers? Hippie law professors from Berkeley whining about the Constitution? Conversations with ordinary people must be boring compared to conversations with people who know someone who knows actual movie stars.

Hollywood offers glamor (and payouts, and hookers and coke), but ultimately, no matter how much they wish otherwise, US government officials really do govern upon the consent of the governed. Sometimes we have to sit on them and yell in their faces to remind them of this.

Re: Re: Re: Re: Would this be another good time to repeat . . .

from my exp, its not just the left who love unions, many on the right love them, if only because they make alot of money off of said unions(both sides do)

but I like the idea, to bad it wont work/happen.

I like neither the left or right, I have a mix of opinions and ideas of ways to fix this country.

for one thing baring your idea, I think an easy fix for the tax problem would be a flat tax, everybody pays their % no loopholes, tax incentives or any of that bunk.

A man I use to work for admitted to me a while back that he 5 years running has gotten money back, despite being a multi millionaire and making stupid amounts of money each year....and its due to tax loopholes the left(democreitens) and tax cuts(repugnants) put into law, and even he says its pretty messed up.....BUT he would be a fool not to have his accountants take advantage of it....(i cant blame him....i really cant....)

one of the major issues is that our govt is run by rich people paying other rich people to help them get richer.....

I have no problem with wealth.....I have a problem with wealth at the expense of the rest of us....

I could fund a national healthcare system easily with a pretty simple change.

end the war on drugs, let all non-violent drug offenders out, it would be cheaper to give them food stamps and let them live on somebodies couch or even give them subsudized housing then hosing them in prisons.

its 20-45k a year to house EACH of these people......many in prison for something as stupid as having a freezer bag of weed....(not kidding....)

that 20-45k a year could be better spent on public services then on keeping pot heads and such in prison.....hell I dont even smoke the stuff and I think its stupid its illegal and alch isnt...never seen a stoned driver run into a parked cop car...or run over somebody... as a cop friend of mine likes to say "you never know what a drunks going to do, the worst pot head stoners gonna do is kill a bag of doritios and a soda".

but, again the problem with ending the "war on drugs" is that its making rich people money.....oh yeah and as george carlin liked to point out, america loves war.....

Re: Biased

Agreed that Pallante is biased. However, the real question is, "Has there been regulatory capture of the Copyright Office by Hollywood?" The matter of regulatory capture needs a lot more attention, plus what to do about it, should it be found to have happened. Regulatory capture is a well-known problem, which happened for many years in the trucking industry, amongst others. The economic consequences of regulatory capture are dire.

In her challenge to Ms. Pallante's comment about Eldred and Golan, Ms. Lofgren really should go back and read the Supreme Court's discussion regarding the precatory clause in Article 1, Section 8, Clause 8. While it may be the mere splitting of hairs about who is on first (author or public) and who is on second (author or public), Ms. Pallante's comment is much more in consanance with Supreme Court decisions than that of Ms. Lofgren.

Why? As even Lessig acknowledged in his brief and argument before the Supreme Court in the Eldred case, the precatory clause is not a substantive limitation of the power of Congress to legislate regarding "writings" and "inventions". The only limits are "exclusive" and "limited times".

As petitioners point out, we have described the Copyright Clause as "both a grant of power and a limitation," Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966), and have said that "[t]he primary objective of copyright" is "[t]o promote the Progress of Science," Feist, 499 U.S., at 349. The "constitutional command," we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science." Graham, 383 U.S., at 6.18.

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives. See Stewart v. Abend, 495 U.S., at 230 ("Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces [...] . [I]t is not our role to alter the delicate balance Congress has labored to achieve."); Sony, 464 U.S., at 429 ("[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product."); Graham, 383 U.S., at 6 ("Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.").

Nowhere does the Supreme Court say promoting the progress is "not a limit on Congress' legislative power." It's just that it's an incredibly broad limit. As long as Congress can give a rational basis for the proposed legislation "promoting the progress of science and the useful arts," then they are not acting unconstitutionally.

But if Congress cannot provide a rational basis for the law "promoting the progress," then Congress is acting outside the bounds of the Copyright Clause, and the law is unconstitutional. You may also want to read the explanation of these limits in the court case that you cited, Graham v. John Deere:

The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which, by constitutional command, must "promote the Progress of [...] useful Arts." This is the standard expressed in the Constitution, and it may not be ignored. And it is in this light that patent validity "requires reference to a standard written into the Constitution." Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, at 340 U. S. 154 (concurring opinion).

Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which, in its judgment, best effectuates the constitutional aim. This is but a corollary to the grant to Congress of any Article I power.

This is why both the Graham case, and the Eldred case, spent over half of each ruling going into the reasons why Congress enacted the laws it did, and whether those reasons constituted a rational basis for promoting the progress.Ms. Pallante's comment is much more in consanance with Supreme Court decisions than that of Ms. Lofgren.

This is a transcript of the exchange in question.

Pallante: So, when I took this job, I was required to take an oath, to uphold the Constitution and the laws of the United States. Uh, the Constitutional Clause to promote the progress of science and the useful arts, works in part, by, quote, securing for limited time to authors, their respective writings and discoveries. What I was doing in that interview, and you extracted one sentence from a four-page interview, was making the point that the Supreme Court has interpreted that clause, including in two recent decisions, Eldred and Golan, in the last year, that the limited monopoly goes first to authors, so that they will produce, so that in the end, the public will benefit.

Lofgren: I think that's a real misstatement of the Eldred case. The Eldred case, basically, had to do with the jurisdiction of Congress. It didn't find that the, um, the benefit was to authors instead of society. It basically was, uh, a finding that Congress was not limited by the words, uh... for limited periods, for the extreme measure that we've done now, life of the author plus seventy years.

Pallante is indeed wrong. The Supreme Court did not say that the limited monopoly "goes first to authors, so that they will produce, so that in the end, the public will benefit."

Here's what the court actually decided:

In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity. In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.

In contrast, the court did not say that "in the end," the public will benefit. They reiterated that the primary objective of copyright is to promote progress. (I've already provided the quotes above.)

Regarding Eldred, Lofgren is right, and Pallante is wrong.

But perhaps she was thinking of Golan v. Holder. Here's what Golan said about copyright going "first to authors:"

The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. [...] Evidence from the founding, moreover, suggests that inducing dissemination - as opposed to creation - was viewed as an appropriate means to promote science. [...] Our decisions correspondingly recognize that "copyright supplies the economic incentive to create and disseminate ideas." [Emphasis in original]

So, no, they didn't hold that copyright goes "to authors first" so that the public will benefit "in the end." They held that the public benefited even when works were still under copyright, because the dissemenation of works was an immediate benefit to the public.

Re: Re:

As I noted in one of my comments this really amounts to splitting hairs about who is on first and who is on second. Nevertheless, if the preambulatory clause is not a substantive limitation on Congress' legislative power as admitted by the Eldred petitioner and conceded in its counsel's brief to the court, then Ms. Pallante's statement is more in line with precendent than Ms. Lofgren's.

for the public, not the authors, it is not a new idea

from the House Report accompanying the 1909 Act: "The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given."